Rule 5-302.2. Grand jury proceedings.

A. Timing upon filing of criminal complaint. (1) Time limits. Grand jury proceedings shall be scheduled and held with a disposition entered within a reasonable time but in any event no later than ten (10) days if the defendant is in custody, and no later than sixty (60) days if the defendant is not in custody, of whichever of the following events occurs latest: (a) the first appearance; (b) the first appearance after the refiling of a case previously dismissed by the prosecutor; (c) if an evaluation of competency has been ordered, the date an order is filed finding the defendant competent to stand trial; (d) if the defendant is arrested or surrenders on any warrant, the date the defendant is returned to the court; (e) if the defendant has been placed in a preprosecution diversion program, the date a notice is filed in the district court stating that the preprosecution diversion program has been terminated for failure to comply with the terms, conditions, or requirements of the program; or (f) the date the conditions of release are revoked or modified under Rule 5- 403 NMRA, that result in the defendant’s continued detention or release. (2) Extensions. On a showing of good cause, the court may extend the time limits for holding a grand jury proceeding or preliminary examination for up to sixty (60) days. If the defendant does not consent, the court may extend the time limits in Subparagraph (A)(1) of this rule only on a showing on the record that exceptional circumstances beyond the control of the state or the court exist and justice requires the delay. An extension for exceptional circumstances shall not exceed sixty (60) days. The time enlargement provisions in Rule 5-104 NMRA do not apply to a preliminary examination or grand jury proceeding. (3) Dismissal without prejudice. If a grand jury proceeding or preliminary examination is not held within the time limits in this rule, the court shall dismiss the case without prejudice and discharge the defendant. B. Notice to target; timing. (1) Content. The prosecuting attorney assisting the grand jury shall notify the target of a grand jury investigation in writing that the person is the target of an investigation. The writing shall notify the target of (a) the nature of the alleged crime being investigated; (b) the date of the alleged crime; (c) any applicable statutory citations; (d) the target’s right to testify; (e) the target’s right not to testify; (f) the target’s right to submit exculpatory evidence to the district attorney for presentation to the grand jury; and (g) the target’s right to the assistance of counsel during the grand jury investigation. Target notices shall be substantially in the form approved by the Supreme Court. (2) Notice and time. A prosecuting attorney shall use reasonable diligence to notify a person in writing that the person is a target of a grand jury investigation. The target and the target’s attorney shall be notified in writing no later than four (4) business days before the scheduled grand jury proceeding if the target is incarcerated. The target and the target’s attorney shall be notified in writing no later than ten (10) business days before the scheduled proceeding if the target is not incarcerated. (3) Notice not required. Notice shall not be required if, before the grand jury proceeding, the prosecuting attorney secures a written order of the grand jury judge determining by clear and convincing evidence that notification may result in flight by the target, result in obstruction of justice, or pose a danger to another person, other than the general public. C. Evidence. (1) Lawful, competent, and relevant evidence. All evidence presented shall be lawful, competent, and relevant, but the Rules of Evidence shall not apply. (2) Exculpatory evidence. The prosecuting attorney shall alert the grand jury to all lawful, competent, and relevant evidence that disproves or reduces a charge or accusation or that makes an indictment unjustified and that is within the knowledge, possession, or control of the prosecuting attorney. (3) Evidence and defenses submitted by target. If the target submits written notice to the prosecuting attorney of exculpatory evidence as defined in Subparagraph (2) of this paragraph, or a relevant defense, the prosecuting attorney shall alert the grand jury to the existence of the evidence. (a) Form of submission. The target’s submission shall consist of a factual and non-argumentative description of the nature of any tangible evidence and the potential testimony of any witnesses, along with the names and contact information of any witnesses necessary to provide the evidence. The target shall provide its submission to the prosecuting attorney by letter substantially in accordance with Form 9-219 NMRA (“Grand Jury Evidence Alert Letter”). (b) Cover letter. The target’s submission to the prosecuting attorney shall be accompanied by a cover letter, which will not go to the grand jury. The cover letter may include proposed questions and should include any contextual information, any arguments about the propriety or significance of the requested evidence and defenses, and any other matters that may be helpful to the prosecutor or the grand jury judge. (c) Timing. The target’s written notice of evidence shall be provided to the prosecuting attorney no less than forty-eight (48) hours in advance of the scheduled grand jury proceeding. (4) Review of prosecutor’s decision not to alert grand jury to target’s evidence or defenses. The prosecuting attorney assisting the grand jury may only be relieved of the duty to alert the grand jury to the target’s evidence or defenses by obtaining a court order before the grand jury proceeding. The prosecuting attorney shall file a motion under seal with the grand jury judge, with written notice to the target, stating why the target’s submitted evidence is not exculpatory as defined in Subparagraph (2) of this paragraph or stating why the grand jury should not be instructed on the target’s requested defenses. A copy of the target’s grand jury evidence alert letter and cover letter shall be attached to the motion. The target may file under seal a response to the motion, and, if no response is filed, the grand jury judge may ask the target for a written response, to be filed under seal, and may convene a hearing. The burden is on the prosecuting attorney to show that the proposed evidence is not exculpatory as defined in Subparagraph (2) of this paragraph. The grand jury judge will give the prosecuting attorney clear direction on how to proceed before the grand jury, making a record of the decision. D. Instructions to grand jury. (1) Elements and defenses. The prosecuting attorney who is assisting the grand jury shall provide the grand jurors with instructions setting forth the elements of each offense being investigated and the definitions of any defenses raised by the evidence. (2) Other instructions. The prosecuting attorney shall provide the grand jury with other instructions which are necessary to the fair consideration by the grand jury of the issues presented. E. Record. All proceedings in the grand jury room shall be recorded, but the deliberations of the grand jury shall not be recorded. Copies of any documentary evidence and any target’s Grand Jury Evidence Alert Letter which was presented to the grand jury shall be made part of the record. F. Review by the district court. (1) Supervisory authority. The district court has supervisory authority over all grand jury proceedings. (2) Scope of review. Failure to follow the procedures set forth in this rule shall be reviewable in the district court. The weight of the evidence on which an indictment is returned shall not be subject to review absent a showing of bad faith on the part of the prosecuting attorney assisting the grand jury.